ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT

[February 25, 2004]

Justice Scalia, with whom Justice
Thomas joins, dissenting.

In Church of Lukumi Babalu Aye,
Inc. v. Hialeah,508 U.S. 520 (1993),
the majority opinion held that [a] law burdening
religious practice that is not neutral must undergo the
most rigorous of scrutiny, id., at 546, and that
the minimum requirement of neutrality is that a law not
discriminate on its face, id., at 533. The
concurrence of two Justices stated that [w]hen a law
discriminates against religion as such, it automatically
will fail strict scrutiny. Id., at 579 (Blackmun,
J., joined by OConnor, J., concurring in judgment). And
the concurrence of a third Justice endorsed the
noncontroversial principle that formal
neutrality is a necessary conditio[n] for
free-exercise constitutionality. Id., at 563
(Souter, J., concurring in part and concurring in judgment).
These opinions are irreconcilable with todays decision,
which sustains a public benefits program that facially
discriminates against religion.

I

We articulated the principle that
governs this case more than 50 years ago in Everson v.
Board of Ed. of Ewing,330 U.S. 1 (1947):

New Jersey cannot hamper its citizens in the free
exercise of their own religion. Consequently, it cannot
exclude individual Catholics, Lutherans, Mohammedans, Baptists,
Jews, Methodists, Non-believers, Presbyterians, or the members
of any other faith, because of their faith, or lack of it, from
receiving the benefits of public welfare legislation.
Id., at 16 (emphasis deleted).

When the State makes a public benefit generally available,
that benefit becomes part of the baseline against which burdens
on religion are measured; and when the State withholds that
benefit from some individuals solely on the basis of religion,
it violates the Free Exercise Clause no less than if it had
imposed a special tax.

That is precisely what the State of
Washington has done here. It has created a generally available
public benefit, whose receipt is conditioned only on academic
performance, income, and attendance at an accredited school.
It has then carved out a solitary course of study for
exclusion: theology. Wash. Rev. Code §28B.119.010(8)
(Supp. 2004); Wash. Admin. Code
§25080020(12)(g) (2003). No field of study
but religion is singled out for disfavor in this fashion.
Davey is not asking for a special benefit to which others are
not entitled. Cf. Lyng v. Northwest Indian Cemetery
Protective Assn.,485 U.S. 439, 453
(1988). He seeks only equal treatmentthe right to
direct his scholarship to his chosen course of study, a right
every other Promise Scholar enjoys.

The Courts reference to
historical popular uprisings against procuring taxpayer
funds to support church leaders, ante, at 8, is
therefore quite misplaced. That history involved not the
inclusion of religious ministers in public benefits programs
like the one at issue here, but laws that singled them out for
financial aid. For example, the Virginia bill at which
Madisons Remonstrance was directed provided: [F]or
the support of Christian teachers [a] sum payable for
tax on the property within this Commonwealth, is hereby
assessed . A Bill Establishing a Provision
for Teachers of the Christian Religion (1784), reprinted in
Everson, supra, at 72. Laws supporting the
clergy in other States operated in a similar fashion. See S.
Cobb, The Rise of Religious Liberty in America 131, 169, 270,
295, 304, 386 (1902). One can concede the Framers
hostility to funding the clergy specifically, but that
says nothing about whether the clergy had to be excluded from
benefits the State made available to all. No one would
seriously contend, for example, that the Framers would have
barred ministers from using public roads on their way to
church.1

The Court does not dispute that the
Free Exercise Clause places some constraints on public benefits
programs, but finds none here, based on a principle of
play in the
joints. Ante,
at 4. I use the term principle loosely, for that
is not so much a legal principle as a refusal to apply any
principle when faced with competing constitutional
directives. There is nothing anomalous about constitutional
commands that abut. A municipality hiring public contractors
may not discriminate against blacks or in favor of
them; it cannot discriminate a little bit each way and then
plead play in the joints when haled into court. If
the Religion Clauses demand neutrality, we must enforce them,
in hard cases as well as easy ones.

Even if play in the
joints were a valid legal principle, surely it would
apply only when it was a close call whether complying with one
of the Religion Clauses would violate the other. But that is
not the case here. It is not just that the State could,
consistent with the Federal Constitution, permit Promise
Scholars to pursue a degree in devotional theology.
Ante, at 5. The establishment question would not
even be close, as is evident from the fact that this
Courts decision in Witters v. Washington Dept.
of Servs. for Blind,474 U.S. 481 (1986),
was unanimous. Perhaps some formally neutral public benefits
programs are so gerrymandered and devoid of plausible secular
purpose that they might raise specters of state aid to
religion, but an evenhanded Promise Scholarship Program is not
among them.

In any case, the State already has
all the play in the joints it needs. There are any number of
ways it could respect both its unusually sensitive concern for
the conscience of its taxpayers and the Federal Free
Exercise Clause. It could make the scholarships redeemable
only at public universities (where it sets the curriculum), or
only for select courses of study. Either option would replace
a program that facially discriminates against religion with one
that just happens not to subsidize it. The State could also
simply abandon the scholarship program altogether. If that
seems a dear price to pay for freedom of conscience, it is only
because the State has defined that freedom so broadly that it
would be offended by a program with such an incidental,
indirect religious effect.

What is the nature of the
States asserted interest here? It cannot be protecting
the pocketbooks of its citizens; given the tiny fraction of
Promise Scholars who would pursue theology degrees, the amount
of any citizens tax bill at stake is de minimis.
It cannot be preventing mistaken appearance of endorsement;
where a State merely declines to penalize students for
selecting a religious major, [n]o reasonable observer is
likely to draw an inference that the State itself is
endorsing a religious practice or belief. Id., at
493 (OConnor, J., concurring in part and concurring in
judgment). Nor can Washingtons exclusion be defended as
a means of assuring that the State will neither favor nor
disfavor Davey in his religious calling. Davey will throughout
his life contribute to the public fisc through sales taxes on
personal purchases, property taxes on his home, and so on; and
nothing in the Courts opinion turns on whether Davey
winds up a net winner or loser in the States
tax-and-spend scheme.

No, the interest to which the Court
defers is not fear of a conceivable Establishment Clause
violation, budget constraints, avoidance of endorsement, or
substantive neutralitynone of these. It is a pure
philosophical preference: the States opinion that it
would violate taxpayers freedom of conscience not
to discriminate against candidates for the ministry. This
sort of protection of freedom of conscience has no
logical limit and can justify the singling out of religion for
exclusion from public programs in virtually any context. The
Court never says whether it deems this interest compelling (the
opinion is devoid of any mention of standard of review) but,
self-evidently, it is not.2

II

The Court makes no serious attempt to
defend the programs neutrality, and instead identifies
two features thought to render its discrimination less
offensive. The first is the lightness of Daveys burden.
The Court offers no authority for approving facial
discrimination against religion simply because its material
consequences are not severe. I might understand such a test if
we were still in the business of reviewing facially neutral
laws that merely happen to burden some individuals
religious exercise, but we are not. See Employment Div.,
Dept. of Human Resources of Ore. v. Smith,494 U.S. 872, 885
(1990). Discrimination on the face of a statute is
something else. The indignity of being singled out for special
burdens on the basis of ones religious calling is so
profound that the concrete harm produced can never be dismissed
as insubstantial. The Court has not required proof of
substantial concrete harm with other forms of
discrimination, see, e.g., Brown v. Board of
Education,347
U.S. 483, 493495 (1954); cf. Craig v.
Boren,429 U.S.
190 (1976), and it should not do so here.

Even if there were some threshold
quantum-of-harm requirement, surely Davey has satisfied it.
The First
Amendment, after all, guarantees free exercise of
religion, and when the State exacts a financial penalty of
almost $3,000 for religious exercisewhether by tax or by
forfeiture of an otherwise available benefitreligious
practice is anything but free. The Courts only
response is that Promise Scholars may still use their
scholarship to pursue a secular degree at a different
institution from where they are studying devotional
theology. Ante, at 7, n. 4. But part of
what makes a Promise Scholarship attractive is that the
recipient can apply it to his preferred course of study
at his preferred accredited institution. That is part
of the benefit the State confers. The Court
distinguishes our precedents only by swapping the benefit to
which Davey was actually entitled (a scholarship for his chosen
course of study) with another, less valuable one (a scholarship
for any course of study but his chosen one). On such
reasoning, any facially discriminatory benefits program can be
redeemed simply by redefining what it guarantees.

The other reason the Court thinks
this particular facial discrimination less offensive is that
the scholarship program was not motivated by animus toward
religion. The Court does not explain why the
legislatures motive matters, and I fail to see why it
should. If a State deprives a citizen of trial by jury or
passes an ex post facto law, we do not pause to
investigate whether it was actually trying to accomplish the
evil the Constitution prohibits. It is sufficient that the
citizens rights have been infringed. [It does not]
matter that a legislature consists entirely of the purehearted,
if the law it enacts in fact singles out a religious practice
for special burdens. Lukumi, 508 U.S., at 559
(Scalia, J., concurring in part and concurring in
judgment).

The Court has not approached other
forms of discrimination this way. When we declared racial
segregation unconstitutional, we did not ask whether the State
had originally adopted the regime, not out of
animus against blacks, but because of a
well-meaning but misguided belief that the races would be
better off apart. It was sufficient to note the current effect
of segregation on racial minorities. See Brown,
supra, at 493495. Similarly, the Court does not
excuse statutes that facially discriminate against women just
because they are the vestigial product of a well-intentioned
view of womens appropriate social role. See,
e.g., United States v. Virginia,518 U.S. 515,
549551 (1996); Adkins v. Childrens
Hospital of D. C.,261 U.S. 525,
552553 (1923). We do sometimes look to legislative
intent to smoke out more subtle instances of discrimination,
but we do so as a supplement to the core guarantee of
facially equal treatment, not as a replacement for it. See
Hunt v. Cromartie, 526 U.S. 541, 546
(1999).

There is no need to rely on
analogies, however, because we have rejected the Courts
methodology in this very context. In McDaniel v.
Paty,435 U.S.
618 (1978), we considered a Tennessee statute that
disqualified clergy from participation in the state
constitutional convention. That statute, like the one here,
was based upon a state constitutional provisiona clause
in the 1796 Tennessee Constitution that disqualified clergy
from sitting in the legislature. Id., at 621, and
n. 1 (plurality opinion). The State defended the statute
as an attempt to be faithful to its constitutional separation
of church and state, and we accepted that claimed benevolent
purpose as bona fide. See id., at 628. Nonetheless,
because it did not justify facial discrimination against
religion, we invalidated the restriction. Id., at
629.3

It may be that Washingtons
original purpose in excluding the clergy from public benefits
was benign, and the same might be true of its purpose in
maintaining the exclusion today. But those singled out for
disfavor can be forgiven for suspecting more invidious forces
at work. Let there be no doubt: This case is about
discrimination against a religious minority. Most citizens of
this country identify themselves as professing some religious
belief, but the States policy poses no obstacle to
practitioners of only a tepid, civic version of faith. Those
the statutory exclusion actually affectsthose whose
belief in their religion is so strong that they dedicate their
study and their lives to its ministryare a far narrower
set. One need not delve too far into modern popular culture to
perceive a trendy disdain for deep religious conviction. In an
era when the Court is so quick to come to the aid of other
disfavored groups, see, e.g., Romer v.
Evans,517 U.S.
620, 635 (1996), its indifference in this case, which
involves a form of discrimination to which the Constitution
actually speaks, is exceptional.

* * *

Todays holding is limited to
training the clergy, but its logic is readily extendible, and
there are plenty of directions to go. What next? Will we deny
priests and nuns their prescription-drug benefits on the ground
that taxpayers freedom of conscience forbids medicating
the clergy at public expense? This may seem fanciful, but
recall that France has proposed banning religious attire from
schools, invoking interests in secularism no less benign than
those the Court embraces today. See Sciolino, Chirac Backs Law
To Keep Signs of Faith Out of School, N. Y. Times, Dec.
18, 2003, p. A17. When the publics freedom of conscience
is invoked to justify denial of equal treatment, benevolent
motives shade into indifference and ultimately into repression.
Having accepted the justification in this case, the Court is
less well equipped to fend it off in the future. I
respectfully dissent.

Notes

1. Equally misplaced is the Courts
reliance on founding-era state constitutional provisions that
prohibited the use of tax funds to support the ministry.
Ante, at 910. There is no doubt what these
provisions were directed against: measures of the sort
discussed earlier in text, singling out the clergy for public
support. See supra, at 23. The Court offers no
historical support for the proposition that they were meant to
exclude clergymen from general benefits available to all
citizens. In choosing to interpret them in that fashion, the
Court needlessly gives them a meaning that not only is contrary
to our Religion Clause jurisprudence, but has no logical
stopping-point short of the absurd. No State with such a
constitutional provision has, so far as I know, ever prohibited
the hiring of public employees who use their salary to conduct
ministries, or excluded ministers from generally available
disability or unemployment benefits. Since the Court cannot
identify any instance in which these provisions were applied in
such a discriminatory fashion, its appeal to their plain
text, ante, at 9, adds nothing whatever to the
plain text of Washingtons own Constitution.

2. The Court argues that those pursuing
theology majors are not comparable to other Promise Scholars
because training for religious professions and training
for secular professions are not fungible. Ante,
at 7. That may well be, but all it proves is that the State
has a rational basis for treating religion differently.
If that is all the Court requires, its holding is contrary not
only to precedent, see supra, at 1, but to common sense.
If religious discrimination required only a rational basis,
the Free Exercise Clause would impose no constraints other than
those the Constitution already imposes on all government
action. The question is not whether theology majors are
different, but whether the differences are substantial enough
to justify a discriminatory financial penalty that the State
inflicts on no other major. Plainly they are not.
Equally unpersuasive is the
Courts argument that the State may discriminate against
theology majors in distributing public benefits because the
Establishment Clause and its state counterparts are themselves
discriminatory. See ante, at 78, 910. The
Courts premise is true at some level of
abstractionthe Establishment Clause discriminates against
religion by singling it out as the one thing a State may not
establish. All this proves is that a State has a compelling
interest in not committing actual Establishment Clause
violations. Cf. Widmar v. Vincent,454 U.S. 263, 271
(1981). We have never inferred from this principle that a
State has a constitutionally sufficient interest in
discriminating against religion in whatever other context it
pleases, so long as it claims some connection, however
attenuated, to establishment concerns.

3.McDaniel had no opinion for the
Court, but nothing in the separate opinions suggests
disagreement over the issues relevant here. Cf. 435 U.S., at
636, n. 9 (Brennan, J., concurring in judgment) (noting dispute
over statutes purpose but deeming it irrelevant).